The EPA’s Proposed Power Plant Rule: Will it Survive in the Courts?

In May, the EPA proposed a new rule to regulate greenhouse gas emissions from new and existing power plants. This is EPA’s third attempt to regulate these emissions.  The Supreme Court struck down the Obama administration’s Clean Power Plan in West Virginia v. EPA, which was the first time the Court formally acknowledged and explicitly relied on the “major questions” doctrine. The DC Circuit had previously struck down the Trump Administration’s Affordable Clean Energy Rule and, although West Virginia involved an appeal of that decision, the Supreme Court did not rule on the Trump Administration’s rule.

The new rule’s supporters say it’s well in line with EPA’s statutory authority, the state of the electric markets, and available emissions-reduction measures. Its opponents say it is legally flawed and threatens grid reliability.  What are the potential legal and policy issues associated with the proposed rule?  Does it raise “major questions” issues? Is the agency relying upon unproven technology in violation of the statutory requirement that its standards be based only on the “best system of emission reduction” that “has been adequately demonstrated?” Does this rule violate state prerogatives for regulating existing sources?  Join us as we explain the rule and then discuss the legal and policy issues it raises.